Focus in parenting legislation should be on the children, not the parents

January 16, 2018

It’s not about you.

That’s a hard lesson for many of us to learn in various parts of our lives but may be particularly problematic point for parents to grasp when they’re in the middle of a marital dissolution – be it amicable or acrimonious.

It’s not about mother’s rights or father’s rights, and it’s certainly not about equality between the parents. The fundamental principle that should guide parenting arrangements following a marital breakdown is what’s in the best interests of the child, full stop.

And because the proposed bill S-202, Shared Parenting Act, a private member’s bill sponsored by Senator Anne Cools, puts the focus instead on the rights of the parent, the CBA’s Family Law Section says it should not go ahead.

In its submission on the bill, the Section says it appears to “attempt a back-door approach to what has proven unacceptable through the front door,” starting with the assumption that shared parenting – giving parents equal right of access – is always in the best interests of the child.

“The CBA Section has expressed opposition to other private member’s bills that would have imposed a presumption of equal parenting time for both parents,” the submission says. “Those bills, like other proposals to amend the Divorce Act to change the ‘best interests of the child’ test, relied on laudable goals like promoting equality between the sexes and more predictability for divorcing families. However, presumptions based on parental rights or other considerations only divert attention from the primary right of children to be in whatever parenting arrangement is best for them at that time.”

An equal, shared parenting arrangement may well be best for some families, but not necessarily for every family, and it is “only one of many possible options available” – each case must be decided on its individual merits.

Concerns with the proposed bill do not end there. Bill S-202 would hamper judicial discretion and make relevant case law increasingly stagnant, the Section says.

There are problems with terminology – for example, the bill conflates the terms “custody” and “parenting,” when in fact they are different concepts. “Parenting” is not defined in the bill, and would be only one aspect of a joint custody arrangement. A lack of definitions for newly introduced concepts such as “parenting plans” can cause confusion and add costs, which create access to justice problems.

Other measures proposed in the bill are redundant, being already covered in the Divorce Act, or are inconsistent with language in the Divorce Act.

While Bill S-202 “would not address the needs of separating Canadian families,” there is room for improvement in the existing legislation. In this submission, as well as in a related submission calling for amendments to the Divorce Act, the Section suggests listing criteria for determining the best interests of children, clarifying parental responsibilities and moving away from the words “custody” and “access,” which can in themselves be divisive, and clarifying the guidance on what happens when one parent wishes to relocate.

Other suggestions in this submission are:

Training for police officers called on to intervene in difficult family situations

Government-funded parental education programs for separating parents

Access to dispute resolution strategies outside the court system

Expanded use of unified family courts to improve services for families.